Griffin v. State, 27087

• Decision Date: 18 May 1972
• Docket Number: No. 27087,27087
• Citation: 229 Ga. 165,190 S.E.2d 61
• Parties: Eddie GRIFFIN, Jr. v. The STATE.
• Court: Georgia Supreme Court

Page 61

190 S.E.2d 61

229 Ga. 165

Eddie GRIFFIN, Jr. v. The STATE.

No. 27087.

Supreme Court of Georgia.

May 18, 1972.

Calhoun & Kernaghan, William C. Calhoun, Augusta, for appellant.

R. William Barton, Dist. Atty., Augusta, Arthur K. Bolton, Atty. Gen., Harold N. Hill, Jr., Executive Asst. Atty. Gen., Courtney Wilder Stanton, David L. G. King, Jr., Dorothy Y. Kirkley, Asst. Attys. Gen., Atlanta, for appellee.

Syllabus Opinion by the Court

HAWES, Justice.

Eddie Griffin, Jr., was convicted of the offense of rape and of the offense of armed robbery. He was sentenced to life imprisonment on the rape conviction and to serve 5 years concurrently therewith on the armed robbery conviction. He made a motion for a new trial which was overruled and he appealed from the judgments and sentences imposed on each charge and from the overruling of his motion for a new trial.

1. Aside from the general grounds of his motion appellant argues only one question. He contends that the trial court erred in refusing to suppress evidence of one of the prosecuting witnesses in identifying him as the individual who perpetrated the armed robbery, and in thereafter refusing to strike the testimony of the same witness insofar as the same pertained to the identification of the defendant. Both of these contentions are based upon the contention that the person of the accused was exhibited to this witness while the accused was incarcerated in a jail cell and while his counsel was not present. Appellant relies principally upon the rules enunciated by the Supreme Court of the United States in United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149, and in Gibert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178. Appellant contends that under the rulings in those cases the in-court identification of the accused by the witness is per se excludable where the evidence shows that such in-court identification is tainted by an illegal line-up identification. Such is not the rule established by those cases, however. We quoted and applied the ruling of those cases in the recent case of Butler v. State, 226 Ga. 56(1), 172 S.E.2d 399, 401, where we said: 'As was stated in United States v. Wade, 388 U.S. 218, 240, 241, 87 S.Ct. 1926, 1939, 18 L.Ed.2d 1149, '* * * Where, as here, the admissibility of evidence of the line-up identification itself is not involved, a per se rule of exclusion of courtroom identification would be unjustified. . . . We think it follows that the proper test to be applied in these situations is that quoted in Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441 '(W)hether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' Maguire, Evidence of Guilt, 221 (1959). See also Hoffa v. United States, 385 U.S. 293, 309, 87 S.Ct. 408, 17 L.Ed.2d 374. Application of this test in the present context requires consideration of various factors; for example, the prior opportunity to observe the alleged criminal act, the existence of any discrepancy between any pre-lineup description and the defendant's actual description, any identification prior to lineup of another person, the identification by picture of the defendant prior to the line-up, failure to identify the defendant on a prior occasion, and the lapse of time between the alleged act and...